In Re: K.B., a minor, Appeal of: N.A. ( 2017 )

J-A24029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF N.A., NATURAL MOTHER
No. 830 WDA 2017
Appeal from the Order Entered May 10, 2017
In the Court of Common Pleas of Washington County
Orphans' Court at No(s): 63-16-737
IN RE: A.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF N.A., NATURAL MOTHER
No. 831 WDA 2017
Appeal from the Order Entered May 10, 2017
In the Court of Common Pleas of Washington County
Orphans' Court at No(s): 63-16-738
IN RE: D.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF N.A., NATURAL MOTHER
No. 832 WDA 2017
Appeal from the Order Entered May 10, 2017
In the Court of Common Pleas of Washington County
Orphans' Court at No(s): 63-16-739
J-A24029-17
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 6, 2017
Appellant N.A. (“Mother”) appeals from the order involuntarily
terminating her parental rights to her biological children, D.B. (born
December 2005), A.B. (born April 2012), and K.B. (born April 2012). Upon
careful review, we affirm.
The Washington County Children and Youth Social Services Agency
(“Agency”) first became involved with the children in July of 2014, when A.B.
and K.B. were found walking down the street alone and away from the
family’s residence.1 After the parents failed to adhere to a safety plan and
tested positive for drug use, the children were placed in emergency foster
care. On August 26, 2014, the children were adjudicated dependent, and
they have remained out of their parents’ care since that time. 2 Mother and
Father were ordered to participate in drug and alcohol treatment programs
and to undergo mental health evaluations, submit to random drug and
alcohol testing, and participate in services through Justice Works.3
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1
The three children lived with Mother and their biological father (“Father”).
2
The children have spent time in the care of relatives, kinship care, and
foster care.
3
Justice Works provides parenting education. See N.T., 9/6/16, at 53.
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Throughout 2014, 2015, and 2016, Mother4 was found at dependency
hearings to fluctuate between (1) being not compliant and making no
progress with the permanency plan, and (2) being substantially compliant
and making moderate progress. Mother was incarcerated twice in early 2015
for failing to report to her probation officer,5 arrested in November 2015 for
refusing a drug test, and arrested in December 2015 for failing a drug test.
In January 2016, Mother resided in the foster home with the children, but in
February 2016, she left in order to focus on her recovery. In March, Mother
resided with D.B. during the week and with the younger children on the
weekends. She continued to visit the children until May 9, 2016, when she
tested positive for drugs and was again incarcerated.
On June 20, 2016, the Agency filed petitions to terminate the parental
rights of Mother and Father under 23 Pa.C.S. § 2511(a)(1), (2), (5), and
(8). The juvenile court held hearings on the petitions on September 6, 2016,
November 16, 2016, and December 30, 2016. Two Agency caseworkers
(Christina Popovich and Andrew Albright) testified, as well as an employee of
Justice Works, a clinical psychologist (Dr. Neil Rosenblum) who had
evaluated interactions between the children and their biological parents and
____________________________________________
4
As Father has not appealed the termination of his parental rights, we do
not address his actions after the children were removed from his care.
5
In December 2014, Mother pleaded guilty to conspiracy to commit burglary
and receiving stolen property and was sentenced to three years’ probation.
See N.T., 9/6/16, at 170-71.
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between the children and their foster parents, Mother, Mother’s father, and
Mother’s father’s girlfriend.
On May 10, 2017, the court issued an order terminating the parental
rights of both Mother and Father. The court found that the Agency proved by
clear and convincing evidence that termination was warranted under each of
the subsections of 23 Pa.C.S. § 2511(a) alleged in the petition.
Mother filed a timely appeal, and raises the following issues:
1. Did the trial court err in terminating Mother’s parental rights
where the Agency failed to prove by clear and convincing
evidence that Mother evidenced a settled purpose of
relinquishing parental claims to the children and failed to prove
that Mother refused or failed to perform parental duties?
2. Did the trial court err in terminating Mother’s parental rights
where the Agency failed to prove by clear and convincing
evidence that the children were without essential parental care,
control or subsistence necessary for their physical or mental well
being due to Mother’s repeated and continued incapacity, abuse,
neglect or refusal?
3. Did the trial court err in concluding that the conditions which
led to the removal of the children continued to exist and
termination of the parental rights would best serve the needs
and welfare of the children?
Mother’s Brief at 2.6
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6
We note that Mother’s three issues challenge the trial court’s findings
under, respectively, subsections (a)(1), (a)(2), and (a)(5) and (a)(8) of
Section 2511. Mother has not challenged whether CYS met its burden under
subsection 2511(b), except to the extent that the 2511(b) requirements
dovetail requirements of Section 2511(a)(8).
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We consider Mother’s issues mindful of our well-settled standard of
review:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (brackets, citations, and
quotation marks omitted).
Section 2511 of the Adoption Act requires a bifurcated analysis:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). The
burden is upon the petitioner “to prove by clear and convincing evidence
that its asserted statutory grounds for seeking the termination of parental
rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). As
Mother does not make a separate argument under Section 2511(b), we shall
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limit our discussion here to Section 2511(a). We will affirm if we agree with
the trial court’s decision as to any one subsection of Section 2511(a). In re
B.L.W., 843 A.2d 380, 384 (Pa. Super.) (en banc), appeal denied, 863
A.2d 1141 (Pa. 2004).
We shall review only the court’s findings under Section 2511(a)(8),
which provides:
(a) General rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds: . . .
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an agency,
12 months or more have elapsed from the date of removal or
placement, the conditions which led to the removal or
placement of the child continue to exist and termination of
parental rights would best serve the needs and welfare of the
child.
23 Pa.C.S. § 2511(a)(8); see In re Z.P., 994 A.2d 1108, 1118 (Pa. Super.
2010) (describing the three elements that must be met under subsection
(a)(8): (1) removal from parental care for 12 months, (2) continued
existence of the conditions leading to removal, and (3) that the needs and
welfare of the children are best served through termination).7 “Termination
under Section 2511(a)(8) does not require the court to evaluate a parent’s
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7
Because both subparts (a)(8) and (b) of Section 2511 require the court to
consider the “needs and welfare” of the child, when the petition is premised
on (a)(8), the child’s best interests normally must be considered twice by
the court. See In re Matsock, 611 A.2d 737, 748 (Pa. Super. 1992)
(applying this reasoning to (a)(5)).
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current willingness or ability to remedy the conditions that initially caused
placement or the availability or efficacy of Agency services.” In re Z.P., 994
A.2d at 1118.
In assessing what best serves the needs and welfare of the child, the
court contemplates the “nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child of
permanently severing any such bond.” L.M., 923 A.2d at 511 (citations
omitted). Nevertheless, the existence of some bond between a child and a
biological parent does not necessarily preclude termination of parental
rights. In re K.Z.S., 946 A.2d, 753, 764 (Pa. Super. 2008). In addition to
the existence of a parental bond, the court “can equally emphasize the
safety needs of the child, and should also consider the intangibles, such as
the love, comfort, security, and stability the child might have with the foster
parent.” In re C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citation
mitted); see also In re T.S.M., 71 A.3d at 268-69 (“courts considering
termination must also consider whether the children are in a pre-adoptive
home and whether they have a bond with their foster parents,” because
“termination may be necessary for the child’s needs and welfare in cases
where the child’s parental bond is impeding the search and placement with a
permanent adoptive home”).
Mother argues that the second requirement under Section 2511(a)(8),
that the conditions leading to the removal of the children continue to exist,
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is not met because the permanency orders show that Mother has had
moderate compliance with the permanency plan as of August 2015, and has
substantial compliance as of January 2016. Mother’s Brief at 15-16. Mother
contends that she has been compliant in participating in parenting education
and drug, alcohol, and mental health services. Id.8
Mother also argues that termination would not serve the best needs
and welfare of the children. Mother’s Brief at 16-18. Mother points out that
the caseworker, Dr. Rosenblum, and the foster parent all testified that the
children and Mother have a bond. Id. Dr. Rosenblum testified that Mother is
intellectually able to care for the children, and that she is patient and
nurturing in her interactions with them. Id. at 17-18.
Regarding subsection (a)(8), the trial court found:
The children have been in the care of two different foster
families since August 26, 2014, thus meeting the first
requirement under 23 Pa.C.S. § 2511(a)(8). Although Mother
was consistent with her visits with the children, at no time were
the children court-ordered to be returned to Mother’s care.
Furthermore, Mother was given the opportunity to participate in
overnight visits in March 2016, however, according to Ms.
Popovich, these visits ceased when [Mother] stopped staying in
the foster home.
Although the [c]ourt recognizes Mother’s efforts to attempt to
establish a sober lifestyle, she has not remedied the conditions
which led to the removal of the children. The fact remains that
Mother has not maintained a sober lifestyle and tested positive
for drugs as recently as May 2016, one month prior to the
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8
Mother does not specify which of these programs she began after the
petition was filed.
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Agency’s filing of the Petition. Mother was given ample
opportunity to successfully complete treatment and alter her
lifestyle so that she could achieve reunification with her children.
Ms. Popovich credibly testified that she and the service providers
have done everything they can in order to prevent the
termination of Mother’s parental rights. Although Ms. Popovich
admits that Mother has made some effort to comply with the
court-ordered services, she also testified that Mother’s level of
success has been inconsistent over the twenty-two month period
prior to the Agency filing the Petition. Additionally, there is not
any evidence that Mother can make the changes necessary to
address both her drug and alcohol problems and her mental
health issues, even with the services being provided to her.
Dr. Rosenblum credibly testified that although Mother acts
appropriately with the children and has been intermediately
effective with them, he continues to have concerns with her
ability to achieve sobriety and properly care for the children.
Specifically, Dr. Rosenblum opined that Mother’s relationship
with Father is co-dependent and this relationship prevents both
parents from overcoming their addictions. Despite the fact that a
bond exists between Mother and each of the children, Dr.
Rosenblum opined that it is not appropriate to wait any longer
for Mother to demonstrate that she can properly care for these
children, since she has had two and a half years to achieve this
goal. In fact, it is Dr. Rosenblum’s professional opinion that it is
in the best interests of the children to sever the bond with
Mother, and severing this bond will allow the children to be
adopted and thus continue to progress and move forward.
The Agency has provided clear and convincing evidence of
each element under 23 Pa.C.S. § 2511(a)(8)[.]
Trial Ct. Op. and Order, 5/10/17, at 23-24 (citations to the record and
emphasis omitted).
The record supports the trial court’s conclusion that the elements of
subsection (a)(8) have been met. In re T.S.M., 71 A.3d at 267. While
Mother continues to work towards recovery from drug addiction, the trial
court did not abuse its discretion in finding that clear and convincing
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evidence establishes that after two years she still has dependency issues
which prevent her from adequate parenting. Cf. In re Z.P., 994 A.2d at
1118.9 Despite their ongoing bonds with Mother, the children have a need
for permanency; the court therefore did not abuse its discretion in
determining that the needs and welfare of the children are best served by
terminating Mother’s rights and permanently placing the children with their
foster family. See In re C.D.R., 111 A.3d at 1219. Thus, because the record
supports the trial court’s findings, we affirm the order below. See In re
T.S.M., 71 A.3d at 268-69.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2017
____________________________________________
9
See also N.T., 9/6/16, at 144-45, 185 (Mother describing the extent of her
ongoing recovery efforts).
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